Sodastream Ltd v Electronics (Broken Hill) Pty Ltd

Re: SODASTREAM LIMITED and SODASTREAM AUSTRALIA PTY. LIMITED
And: ELECTRONICS (BROKEN HILL) PTY LIMITED and RONALD JOHN WALSH
No. G 367 of 1984
Trade Practices (Restrictive)
(1985) ATPR para 40 - 572

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Trade Practices (Restrictive) - exclusive dealing - Trade Practices Act, 1974, s.47 - s.47(10) "substantial lessening of competition" - onus of proof.

T.P.C. v. Guests' Garage Pty. Limited (1976) 26 FLR 433

Evidence - onus of proof.

HEARING

SYDNEY
#DATE 7:6:1985

ORDER

1. Order that para.20 of the defence and paras.3, 4 and 5 of the cross-claim be struck out.

2. Grant liberty to the respondents and cross-claimant to amend their defence and its cross-claim accordingly.

3. Order that the respondents and cross-claimant pay the applicants' costs of this application.
   
   Note: Settlement and entry of orders is dealt with in
   

Order 36 of the Federal Court Rules.

JUDGE1

By their defence and by its cross-claim the respondents and cross-claimant respectively allege a contravention by the applicants and cross-respondent of s.47 of the Trade Practices Act, 1974 ("the Act"). In those pleadings, no allegation is made that the exclusive dealing alleged had the purpose or had or is likely to have the effect of substantially lessening competition (see s.47(10)). The applicants and cross-respondent ("the applicant") now move to strike out those pleadings on the ground that such an allegation is an essential ingredient of a contravention of s.47. In short, the applicant says that the party asserting a contravention of s.47 bears the onus of establishing the matters specified in s.47(10). For their part, the respondents and cross-claimant ("the respondent") accept that, whilst no contravention will be held to have occurred if it is established that there was no substantial lessening of competition, the provisions of s.47(l0) are in the nature of an exception to a general prohibition on exclusive dealing in respect of which exception the burden of proof lies upon the applicant.

1. Since much of the argument in the application centred on the reasoning and decision of the Australian Industrial Court (Dunphy, J., Sweeney and Evatt, JJ.) in Trade Practices Commission v. Guests' Garage Pty. Limited (1976) 26 FLR 433 which was concerned with the onus of proof in a related but earlier provision of the Act, it will be necessary to recite the history of the relevant legislation. As it stood at the time of the decision in Guest, s.45(2) of the Act prohibited, inter alia, the making of an arrangement or the entering into an understanding to the extent that such arrangement or understanding was in restraint of trade. Section 45(3) to (8) dealt with situations where the section did not apply. By s.45(3) it was provided that a contract having the purpose or effect of fixing the price for goods or services was in restraint of trade for the purposes of the Act if the restraint had such a slight effect on competition as to be insignificant. By s.45(4) it was…